People Ex Rel. Waddy v. . Partridge ( 1902 )

The courts below have awarded a peremptory writ of mandamus against the defendant as police commissioner, requiring him to revoke his revocation of a pension to the relator as the widow of a member of the police force of Brooklyn. The questions whether the commissioner can be required to revoke his action and the right of the relator to the pension under the statute are involved in the inquiry.

The relator's husband was a member of the old Metropolitan police force of Brooklyn, having been originally appointed January 8th, 1851. On April 1st, 1882, after more than twenty years' service, he was retired upon a pension pursuant to section forty-one of the then existing charter of Brooklyn (Chapter 863, Laws of 1873). At that time there was no law in existence providing for a pension to a widow of any member of the police force. By chapter 583 of the Laws of 1888 the local laws affecting the public interests in Brooklyn were revised and combined in a single act which came to be known as the charter of that city, and this statute contained the following provision in regard to pensions. The commissioner of police was authorized to grant pensions in the following cases: "To the widow of any member of the police force or attache of the police department who shall have been killed while in the actual performance of police duty, or shall have died from the effects of any injury received whilst in the actual discharge of such duty, or who has died or shall hereafter die, after ten years of service in the police department of the city of Brooklyn, provided such death shall not have been caused by misconduct on his part, a sum not to exceed three hundred dollars per annum." By another section of the statute it was provided that "the pensions to widows shall terminate when the widow shall remarry. * * * The commissioner of police may in his discretion order any pensions granted, or any part thereof, to cease except to members of the police force and attaches retired after twenty years' service." The relator's husband died on June 7th, 1882, several years prior to the enactment of any law providing for pensions to widows. More than seven years after his death, on August 16th, 1889, the relator applied for a pension, which was granted to her and paid until discontinued by the defendant. The contention of the defendant is that the relator's husband had ceased to be a member of the police force long before his death, and that there was no power under this statute to grant a pension to a widow of one who was not at the time of his death a member of the police force.

We think that the provisions of the charter authorizing the granting of a pension to the widow of a member of the police force had no application to the relator. The relator's husband died some six years prior to the enactment of any law for the pensioning of widows. He was not in any proper sense a member of the police force at the time of his death, and the statute, we think, was not retroactive. It was not intended to apply to cases where members of the police force, who had been retired from the service, died prior to the enactment of the statute. If it was applicable to the relator it could be applied to every widow of a member of the police force who had ever served ten years, no matter at what time, however remote, prior to the enactment of the statute, he died.

If, however, the provision of the charter referred to can be so construed as to cover the relator's case, it would be plainly unconstitutional as an appropriation of public moneys to purely private purposes. (Matter of Mahon v. Board of Education,171 N.Y. 263.)

We think that the writ of mandamus was improperly granted in this case, and, therefore, the order appealed from should be reversed and the application denied, without costs.

PARKER, Ch. J., BARTLETT, HAIGHT, VANN, CULLEN and WERNER, JJ., concur.

Ordered accordingly.